from the this-could-get-interesting dept

Following Megaupload's marketing campaign that involved getting a ton of big name stars (many signed to major record labels) to speak out in support of Megaupload (and then putting those quotes into a song), Universal Music Group started issuing questionable takedowns for the video. We've heard numerous theories as to why UMG might think it can do so, but none seem to hold up to much scrutiny. The music in question is not UMG's.

Universal is claiming that one of its artists, Gin Wigmore, had unauthorized work appear in the song, though it's unclear where or how. Megaupload continues to insist that it owns all of the music. Where it gets more bizarre is that apparently will.i.am, who appears in the video saying that he uses Megaupload to "send files across the globe" also sent his own takedown:

But we've also learned that Ken Hertz, attorney for Will.I.Am, also filed a takedown request last week with YouTube.
What's going on here?

Hertz says that like many of the artists who appear in the video, his client had never consented to the "Megaupload Mega Song."

UMG echoes that sentiment. “This is an on-going dispute that surfaced several weeks ago with respect to the unauthorized use of a performance from one of our artists," a UMG spokesperson tells us. "We heard from a number of our other artists and their representatives who told us they’ve never consented to being portrayed in this video."

Now this is where things get interesting. If this is true, it certainly appears that Hertz is admitting to a bogus takedown. Even assuming that what he states is true -- that will.i.am did not give permission -- that's not a copyright claim. It would be a contractual issue. Furthermore, it seems like a pretty strange claim. It's pretty clear that will.i.am did, in fact, state that he uses Megaupload to send files across the globe. Megaupload insists it has clear contracts with all the artists in question, and I'm sure the details will come out as things move forward, but it still seems like Universal (and, now, will.i.am) have a lot of explaining to do.

And, of course, it seems really bizarre that UMG would think this was a prudent course of action, when the only thing it's really done is driven a hell of a lot more attention to Megaupload. Congrats, UMG, you just spent your efforts increasing the power of Megaupload's marketing campaign.

" that will.i.am did not give permission -- that's not a copyright claim. It would be a contractual issue."

Nope, it's a copyright issue. See, Will.I.Am may not be able to consent to being in the video, and all of his work (including what was used in the video) would be by contract copyright to his label. Since the label didn't issue rights to megaupload for his work, it's a copyright issue.

And it's about control again

If this wasn't on the Internet, perhaps on TV, the legal proceeding would likely remove the commercial from airplay, but because it was posted to the Internet it's free (as in not caged). Once it hit the Internet CONTROL over the video was lost.

It may be that UMG and Will.I.Am have a legitimate beef with the commercial and should sue MegaUpload if they have a case.

I ask this next question not to be adversarial but as I'm honestly ignorant. If this commercial WAS on TV, would UMG or Will.I.Am have the same ability to have the commercial pulled, prior to the case being heard in court?

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Actually, Will.I.Am created new content under contract to MegaUpload.
(All the content was new and specific to the video by artists who consented to appear)
"Megaupload attorney Ira Rothken, who filed a lawsuit against UMG today, says Will.i.am and other artists did consent to their use: 'UMG didn't do proper due diligence before sending the takedown notice....And each of the other artists, including Will.i.am signed a broad written agreement allowing the use of their likeness and their statements in the context of the video.'"

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Would breach of contract be a copyright issue? Please explain. Can the contract with the label state that they get all copyright on all content he creates or appears in? If W is supposed to clear everything through UMG then he breached his contract...not Megaupload.

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I've never seen the video, so maybe I should shut up...

But merely because you perform on a song does not automatically give you a copyright. So, for example, the bass player for Guns 'n Roses cannot issue takedowns on Guns 'n Roses songs he finds on youtube.

will.i.am might have a publicity rights claim. He might have a contract claim. But I highly doubt he has a copyright claim to the song or video.

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" See, Will.I.Am may not be able to consent to being in the video, and all of his work (including what was used in the video) would be by contract copyright to his label. "

There's a big whopping "may" in your sentence. So your assertion that Mike's speculation is wrong is based on ... speculation? And stretched pretty thin, I might add. I've never heard of labels having the ability to prevent their artists from doing ads.

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Re: And it's about control again

Yes, they could. It shows their ineffective thoughts on the internet versus tv. They think if you take down the content, it will magically disappear, as if they have control of the content channels. With the internet, that route of censorship is ineffective. Now, MU can upload to their servers and bypass that censorship.

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I've never seen the video, so maybe I should shut up...

But merely because you perform on a song does not automatically give you a copyright.

I have seen the video, and to me, it appears that none of the celebrities are actually "performing". They were filmed stating that they like and/or use MegaUpload, and then those segments were inserted into an animated music video. There's one guy who appears to be performing part of the song, but it looks like they just took his words and set them to music. A couple others (sorry, I have no idea who any of them are) appear to be mouthing along to the song, rather than actually singing, but it's impossible to know if their actions were taken out of context. At least one of them looks like he's doing it sarcastically as he seems to have an annoyed look on his face.

To me, it looks like MegaUpload had some promotional clips of celebs endorsing the site and they decided to stick them in a music video.

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No, I am saying that my speculation is as valid as Mike's speculation, and with a little bit of understanding how personal service and label contracts work (because of reading Techdirt and similar sites) I know it is very likely that UMG automatically gets all rights to any performance, and must approve any appearance in other works outside of their label.

Mike knows this, he is just ignoring it because it makes the story suck.

It actually looks like Mega did this specifically to bait the labels into giving them promotion. No matter what the labels did (legal action or nothing) they end up looking bad. Kimber is a fucking asshole, and knows how to manipulate people. It sucks that Techdirt is giving this guy MORE promotion based on his actions.

Re: And it's about control again

seems to me that someone is clearly lying here and someone is going to make themselves look a complete and utter fucking prat! i sincerely hope it isn't Megaupload. if it is, i think he will be kissing goodbye to a hell of a lot of business because he wont be trusted anymore. he could be asked (told) to produce information concerning uploaders to the site, say he wont/didn't but who would believe him? would people take the risk? i doubt it.

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Indeed sad. But I don't think a contract can be that broad. Ie: it means that if they participate in a marketing campaign for, let's say, P&G then Universal gets part of the money they get for the performance? I don't think this is feasible under the current laws. It virtually makes the artist a slave of the label (not that most contracts don't do it to some extent but it's too much).

I'd like to hear from Mike or some specialist on the issue before jumping to any conclusions.

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Nope, it's a copyright issue. See, Will.I.Am may not be able to consent to being in the video, and all of his work (including what was used in the video) would be by contract copyright to his label
Umm, that would still be a contract issue. You cannot own copyright in your acting, or singing, because those are not fixed. You can own the copyright to a video of your acting, or a recording of your singing, because those are fixed,
the copyright in any such recording belongs to the person or company that makes the recording, not to the person doing the performance. Will.I.Am may have an agreement with UMG not to perform anywhere without approval from UMG, but that's a contract issue between Will.I.Am and UMG. Will.I.Am may have a publicity rights issue with Megaupload, but that's publicity rights, not copyright, so the DMCA does not apply.

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"They were filmed stating that they like and/or use MegaUpload, and then those segments were inserted into an animated music video."

Sounds like fair use to me? This tends to get confusing, though, especially since the takedown from Universal means that they're essentially claiming copyright over non-musical spoken statements by the artists.

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"See, Will.I.Am may not be able to consent to being in the video, and all of his work (including what was used in the video) would be by contract copyright to his label. Since the label didn't issue rights to megaupload for his work, it's a copyright issue."

It still is not a copyright issue it is a contract issue in that Will.I.Am was in breach of the contract with UMG. Assuming that you are correct stating every thing stated by Will.I.Am belongs to UMG according to his contract with them.

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Re: Re: Re: And it's about control again

They could probably get an injunction to keep the commercial from airing until the dispute was settled. And like Wysi said, the networks would probably do what UMG asked without them even getting a court order. IANAL

No Surprise Here

We should remember who Will.I.Am's boss is. The same organization he recently annoyed by promoting MegaUpload. It is not hard to see how they put the thumbscrews on him in lure of optional punishment or reward.

It is true to say these people gave their signed consent and it is also clear their opinions with their claims of "I Love MegaUpload". Such promotional work is not unusual in this business and they would not have consented were it banned.

The creation of the Mega Song was certainly a surprise but that changes things none when their endorsement message is still contained. They may have badly chopped and diced the original videos but this is no different to had they run these full promotional videos by adding their own subtle and owned music track in the background.

So I still cannot see that MegaUpload has done anything wrong when all content is what they are authorised to use. Their only flaw was not making clear to these musicians their full plan to start with and that is hardly a crime.

We should keep in mind the big issue here. These UMG artists endorsed MegaUpload the same "rouge site" who is the sworn enemy of the RIAA/MPAA including their UMG boss. One would have hoped they were "very aware" of what they were doing instead of a surprise "poo hits the electric fan" time.

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Fair use? Where's the copyright?

A person merely orally expressing an opinion isn't copyrightable because it's not fixed. If I asked you what you think of such and such, your response is not copyrightable unless it's in a fixed medium. The copyright to the video is held by whoever produced it or by whoever held the camera.

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Nope, it's a copyright issue. See, Will.I.Am may not be able to consent to being in the video, and all of his work (including what was used in the video) would be by contract copyright to his label. Since the label didn't issue rights to megaupload for his work, it's a copyright issue.

Uh, no. Will.i.am's part of the video was merely him speaking to a camera. No matter what his contract with UMG is, I will assure you it does not include anything and everything he *SAYS*.

Either way, it remains a contract issue and not a copyright issue. Even if you're ridiculous scenario is correct and every word that Will.i.am says is owned by UMG, then the only part who could issue a takedown is UMG. NOT Will.i.am. Once again, even under the preposterous scenario you describe, will.i.am has no copyright claim.

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You may very well be right, but it is important to take into consideration whatever contracts may be in place between the various performers and their respective labels.

If any of the performers could be characterized as having created an "original work of authorship", and if the work for hire doctrine comes into play in favor of the labels, then it is possible that the labels would have a basis for submitting a take-down notice under the DMCA.

If any of the labels do in fact hold rights to the works contained in the video, it may be that Megaupload has a breach of contract action against the performer(s).

The recent Stanford decision by the Supreme Court highlights the difficulties associated with one who executes conflicting contracts with two separate entities.

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Not really fair use. Once those quotes are added into a song, they become part of the song (which in theory is copyright) - but if the artist has assigned copyright for all performance to someone else, you get an overlap.

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"If MegaUpload is lying, I wonder just how many of their, apparently, millions of users would know about this case or care?"

That's the trick - I think that Mega pretty much figured out that no matter what happens, they look "good" in the eyes of the people they are trying to attract as users. They stuck it to the man... no matter what.

"Masnick effect" might be the local term for it, they put UMG in a place where no matter what they did, they promoted mega.

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even if this was true, will.i.am would not own the copyright so he has no right to issue a takedown notice. And if he signed a contract that did not make it clear this condition, and took money for it he committed fraud against mega upload.

Re: No Surprise Here

I'm guessing Universal's going to claim that since the promotional video was turned into a song, that changed it from an endorsement to a performance, and they contractually own all rights to performances by that artist. Which is quite the joke.

I would like to amend my lawsuit

To include the goofy ass guy with the odd quarter helmet shiny thing. We would further like file this brief on why Wil.I,Am, and the group known as Black Eyed Peas, should never be allowed to create what they call a "record" for that shit just sucks. THANKS FERGIE you man you.

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What the record company owns is the copyright to a particular performance on a particular record not the song itself.

You see, in the strange world of the RIAA copyrights get scattered left right and centre and all the label really gets from all of this is the copyright to the performance on a particular CD.

Unless UMG is now claiming to be a music publisher, of course, which, in that case they might, just might, have an itty bitty claim on the music itself. I doubt it though. You see it's the music publisher that has the rights to the music itself, signed over to them so the artist could get a recording contract so that the likes of BMI and ASCAP could wander around telling barber shops and mechanics that they had to pay a royalty each time the song is played anywhere where the public can hear it.

There's an additional problem here. As will.i.am is the composer then neither the label or the music publisher, strictly speaking, can stop him from performing a song or playing it blasting out of his boom box car or in his barber shop or whatever. The label is on extremely thin ground in that no two performances are ever the same so it's next to impossible to say what will.i.am did on a small stage behind the garage is protected by the same copyright as the performance on a CD is which is, invariably, different.

It MAY become a contractual issue if UMG is claiming that they have an exclusive on appearances and performances of will.i.am or the black eyed peas (jointly or severally) in their contracts. In that case produce the contract. But it's not liable in terms of a take down notice based on copyright but on exclusivity. That's remotely possible. And if will.i.am signed a contract with megaupload to take part in a song that is original and NOT covered by outside copyright then his performance there is an issue for UMG to take up with will.i.am's agent for him breaking his contract with THEM.

See?

You're the one who needs to pay attention and you're the one who needs to become familiar with the web that is artist contract (a form of employment contract), exclusivity, and then copyright, preferably in that order.

One way or another this becomes contract law and the takedown become bogus.

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The issue STILL isn't copyright. Get that in your head.

It's contract law, specifically employment contract law, a strange enough entity to start with but that's what it is. When an artist consents to an agreement with a label that's employment contract eve if the artist works "part time" for the label.

Unless that contract specifially spells out exclusivity in that will.i.am can only perform when and in locations and for causes etc that the label preapproves then it's will.i.am that is in breach of his contract with UMG not Megaupload and will.i.am who is liable and, perhaps, they ought to sue him.

No matter how you cut it the takedown notice is still bogus and that's what Megaupload is suing UMG over, not will.i.am's performance. Got it?

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Will.i.am does not own copyright over sounds coming out of his mouth. He owns copyright over words he writes. Someone who records him owns the copyright over that recording.

It does not matter what deal he has signed to UMG in terms of copyright. Yes, he may well have assigned most of his copyrights to UMG - but he cannot sign over "anything with me in it", because he does not own those rights. If I snap a photo of Will.i.am on the street, or record him talking on my phone, the copyright does not automatically go to UMG. It's MY copyright - some past document that Will.i.am signed has absolutely nothing to do with it.

Yes, there may be other contractual issues: for example, he may have agreed not to do appearances for other people. But that would mean HE is in breach of contract - there is no way that Megavideo can be in breach of a contract that they didn't sign and were never party to and had nothing to do with them at all.

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I know it is very likely that UMG automatically gets all rights to any performance, and must approve any appearance in other works outside of their label.

There is no such thing as a copyright over a "performance" - only over a fixed recording of that performance, or over the piece being performed.

Try to understand this: Will.i.am cannot sign over someone else's copyrights. If someone else snaps a photo of him, they own it. Some contract he has with UMG doesn't change that. Will himself might be in breach of contract (if he agreed not to appear for others) - but the photographer is not. Same goes for a video or an quote or anything else.

There may well be a contractual breach here - on Will.i.am's part. Not on Megavideo's. And there is definitely not a copyright issue.

So no, Mike is not "ignoring" anything - you are just woefully misinformed about the basics of copyright.

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Nope, if will.i.am or his agent neglected to inform Megaupload of an exclusivity clause in his contract with them then it's will.i.am who is liable and actionable for that by BOTH Megaupload and UMG.

None of that affects in any way the separate contract will.i.am has with his music publisher who, it seems, aren't complaining.

You're right, the contract with Megaupload would be null and void IF and only IF UMG has an specifically and carefully set out exclusivity clause covering where, when and for whom will.i.am and the black eyed peas could perform. (Jointly and severally.)

Either way, that doesn't trigger a DCMA takedown notice. At worst it triggers a letter or two between lawyers and will.i.am gets edited out of the ad.

IF though, all will.i.am is repeat statements he's made publically prior to the ad being recorded, even if he used different words to that effect, the exclusivity clause itself, should one exist, is in question. He's on the public record as saying this so UMG still hasn't a leg to stand on. Well, not a good one, anyway.

Censorship anyone?

But your speculation isn't valid.

IF will.i.am created new music/material then it's his music publisher who is offended, in law, as they have the exclusive copyright on his creations.

All UMG can do is prohibit will.i.am from recording for a competing label (his contract with UMG is essentially an employment contract remember) or by invoking a performance exclusivity clause prohibit him from performing in any way, time, location or for any entity without UMG's permission. Though I can't see how that can stop will.i.am from making a public statement regarding a polticial issue. Keeping in mind that a recording is, technically, a performance.

Of course, Kimber is jerking the label's chain. That's part of what HE's paid for. So what?

If anyone is actionable here, on the surface, it appears to be will.i.am for violating whatever contract and exclusivity clause is in it with UMG and then violating it by signing another contract with Megaupload that MAY violate that contract for one public statement which makes what is essentially a political statement on a hot political issue.

To add to the fire: Censorship anyone?

No matter how you slice it UMG has no grounds for a DCMA notice as they don't own the copyright. If anyone does, on the performance in the ad, Megaupload does.

Owning the copyright

So, the argument is that the copyright for the video is owned by the one shooting the video and not the person being shot, right? That's correct as far as it goes... but what if the person (or UMG) claims to own copyright on the likeness of the person? Then the issue would be more of whether the video is transformative enough to be fair use, in which case it would be hard to show UMG actually knew it didn't have any copyright.

Of course, if the copyright claim is deemed to be valid, it would give UMG veto power over any appearance by its musicians, wouldn't it? "You can't appear on Letterman, because we own the copyright over everything you do, and we're refusing to sell it to the show because they once made a joke making fun of us." I can't imagine that a contract which would allow something like that would be found valid.

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See below: Headed Censorship?

I'd dispute, strongly, that making what is essentially a political statement on a political issue can be considered "creating new content' in any way shape or form.

In that way, you're saying copyright trumps free speech. That would prevent an artist from saying or doing anything in the political realm that a label couldn't leap on claiming (wrongly) copyright. (Actually the creation of new content would legally offend will.i.am's music publisher not the label. If it's in violation of a contract then, both, together, could sue will.i.am for damages and THEN claim copyright in the new performance (UMG) and the new content (the music publisher). Remember, legally, the two parties are entirely separate persons (entities).

Incidentally performances can be copyright which is what that P with the circle around it means on recordings. That replaces the verbage that used to appear on 78s dating back to the 1930s which went "Performance copyright RCA Blister Music copyright Great Southern Songs Not for radio play or public performance."

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So, you will continue to ignore every other comment I made, including the point above and numerous other comments I've made unanswered by you ACs in this and every other thread?

Let's start with the pertinent question I asked above: who are you? Since you won't provide citations, nor identify yourself, why do you consider yourself an authority over and above someone whose work and identity can be readily verified? "This is my option and I am right" is not a valid launching point for intelligent discussion.

If you don't wish to identify yourself, fine - either provide citations for the things you have "researched" about Kimber, contracts and this specific case or provide a reason why we should trust your opinion without those citations.

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I explained this in the other thread, but of course Masnick ignored it.

The copyright claim is not for the video, but for the song.

If Will.I.Am. or any of the other artists in the video have a publishing deal with UMG, that means UMG owns at least 50% of any song that these people participate in the writing of.

If Megaupload had simply made a video showing various artists speaking about their site, there would have been no copyright claim. However by using their words as "lyrics" in a song, they opened themselves up to a UMG copyright claim.

And any agreement Megaupload claims to have with the artists does not matter one bit, as the artist's publishing contract will be controlling and usurp any "agreement" Megaupload obtained.

Although as we have seen, apparently the whole endeavor was done under phony pretenses.

It's a multiple rights 360 degree contract issue

Most music artist contracts these days are referred to as multiple rights contracts since the label essentially owns the entire brand associated with the artists it signs. Most likely, these artists genuinely support megaupload but their UMG contract doesn't allow for them to publicly promote it.Megaupload probably has written agreements but they mean nothing. will.i.am's attorney is probably the one who sent the takedown

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"Will.i.am does not own copyright over sounds coming out of his mouth. He owns copyright over words he writes. "

As soon as it is recorded, it is "performance", which he owns the copyright on unless he assigns it to someone else.

"but he cannot sign over "anything with me in it", because he does not own those rights. If I snap a photo of Will.i.am on the street, or record him talking on my phone, the copyright does not automatically go to UMG. "

You are right, but we aren't talking about that, are we? We are talking about a performance that is part of a music video / song. He can very specifically assign all of those rights, because HE OWNS THEM TO START WITH. What you pointed out are rights that he does not own to start with.

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Paul, why don't you identify yourself?

""This is my option and I am right""

Fuck off. That isn't what I am saying. I am providing another, plausible situation where copyright could apply. I may be right, I may be wrong. Just shut the fuck up and accept that I am allowed to have an opinion. Why do you insist on being a dick all the time? Maybe it's living in Spain that gets you.

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Breach of contract cannot be a copyright issue ever. Contracts and Copyright deal in different parts of tort law, though they can coincide and a contract can include things under copyright as consideration, and they can also assign total copyright (not part copyright) in SPECIFIC things, and not with a broad brush.

As for a contract that states they get all copyright on all content he creates or appears in, that contract is voidable since just because will.i.am appears in something absolutely does not mean he owns or can assign the copyright to it and therefore does not have capacity to enter into such a contract with a recording company, no matter what they or he thinks.

Will might of breached his contract, though I can see "unconscionable terms" coming into play as any defence on will.i.am's behalf against UMG

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Copyright can NEVER apply in this situation. Only contractual terms that forbid someone from doing something can apply here, and that is a HUGE maybe.

Just because he appeared in a video, or talked on a show, or screamed the opening words from some speech he wrote, this does NOT pass copyright on the filming, recording, or anything else in the actual video in question here to some other party OTHER than the party who commissioned it.

If he has some sort of unconscionable contractual terms forbidding him from doing this in no way makes MegaUpload a contributor to a breach of copyright, or even for that matter a forfeiture of contract.

The only person on the hook, so to speak, is the actual artist who did these things.

Megaupload has no legal, ethical nor moral obligation whatsoever to do what UMG wants in regards to their contracted artist.

Re: Owning the copyright

"what if the person (or UMG) claims to own copyright on the likeness of the person"

Well seeing as copyright can only be fully assigned and not assigned in parts, this would mean that UMG owns the actual skin that the person is in. Means the person would need permission to go about all day to day activities, need permission to travel down the road, never be allowed to go to any place that might have CCTV's, still cameras, or people with eyeballs mark 1.0, let alone audio recording devices (and ears).

Even slaves were given a better ability to interact with the world.

As for appearing on Letterman.. That's a specific contractual clause that stops them appearing on a specific forum talking about specific things and does not in any way stop them from appearing and talking about something OTHER than what they are not allowed to contractually talk about. Even then they are CONTRACTUAL and not copyright issues and are very rarely enforced, and NEVER against political or public interest situations. Think Non disclosures for publicity reasons when talking about Media spots.

I really think you are trying to make copyright into a catch all situation for every wrong you see with the world. Probably best if you re-looked and studied up on basic tort law & contract law again.

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It still does not matter what contracts the artists had with their respective studios etc in regards to MegaUpload.

Just because the artists might not have had the capacity to enter into a contract to create NEW, and yes this is new material, does not matter to the alleged ownership of copyright.

If the artists have breached part of their own contracts, That is the artists problem, Though it might mean that the contract megaUpload has with them is now forfeited it still does not give the Recording companies ownership of any New material that by basic contractual law MegaUpload commissioned from them.

The DMCA was submitted, multiple times too, either by malice, mistake, or ineptitude (or all three) for what is NOT a copyright problem in any way shape or form, and UMG and the Does need to be accountable for any damage that has occurred due to that submission.

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There's enough information I've posted about myself to be able to identify me if you so wished. Hell, my username is simply a shortened form of my real name.

But, no I won't directly identify myself. The reason is that I'm not trying to argue from authority. Your entire argument, on the other hand is "Mike is wrong and I'm right". In the absence of any citations, we'd need to know who you are before we would even consider taking your word for anything.

So, who are you and why do you claim greater authority for your opinions than Mike's opinions? Why should we disbelieve Mike's opinions and believe yours?

"I am providing another, plausible situation where copyright could apply. I may be right, I may be wrong."

Hmmm... that's somewhat different from "Mike knows this, he is just ignoring it because it makes the story suck.", implying you know not only more about the facts but also knowledge of Mike's personal reasoning.

"Just shut the fuck up and accept that I am allowed to have an opinion. Why do you insist on being a dick all the time?"

...and we're back to the kindergarten. Well done, you almost acted like an adult there for a moment.

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As soon as it is recorded, it is "performance", which he owns the copyright on unless he assigns it to someone else.

If he agrees to do a performance for Megavideo, and they record that performance, then they own the copyright on the recording of the performance. There is no copyright on the performance itself - only on the fixed recording of it. And that belongs to the people who made the recording.